Understanding Law: Making an Enduring Power of Attorney

Emily Bowler

We like to think that we’re the architects of our own destinies.

However, the reality is that personal situations change and accidents happen – so it’s important to have a contingency plan in place. Appointing a Power of Attorney ensures that someone you trust can make decisions on your behalf in the event you’re unable to make them yourself.

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document which enables you to appoint one or more people to act as your attorney/s and to make decisions that you would normally make on your behalf. An Enduring Power of Attorney operates when you are no longer able to make your own decisions. An Enduring Power of Attorney is only effective whilst you are still alive, and will cease to have effect when you pass away.

What types of decisions can an attorney make on your behalf?

In the ACT you can appoint your attorney to make any of the following decisions on your behalf:

Property decisions (including legal and financial);

Medical decisions;

Personal care decisions; and

Medical research decisions.

When your attorney makes these types of decisions they are able to make them with the same authority that you would normally have. Your attorney is required to act in your best interests and ideally make any decisions in a manner that you would have done had you been the decision maker. As such it is always best to appoint someone that you trust.

When can my attorney make decisions on my behalf?

When you provide instructions to your solicitor, you can choose for your attorney to make decisions either immediately or when you become of impaired decision making ability. If you choose for your attorney to make decisions immediately, there is no requirement that your decision making ability be impaired for your attorney to commence acting on your behalf. Whereas if you choose for your attorney to make decisions only when you become of impaired decision making ability, a doctor must determine that your decision making ability is impaired.

What are the requirements for a valid Enduring Power of Attorney?

The legislation imposes formal requirements for enduring powers of attorney. Specifically, an enduring power of attorney must be signed by the principal. In addition, the principal’s signature must be signed and dated by two adult witnesses in the presence of the principal and each other.

In addition, your attorney/s must formally accept their position as attorney by signing the acceptance part of your Enduring Power of Attorney document. Upon signing, the Enduring Power of Attorney document will immediately become effective.

If you intend to use the Enduring Power of Attorney with respect to property, for example if you are purchasing a property, then it will be necessary to register the original document at the ACT Office of Regulatory services and to pay a fee associated with this registration.

Who should consider making an Enduring Power of Attorney?

A common misconception about an Enduring Power of Attorney is that it is only necessary for older people who are no longer able to make their own decisions. In our experience, life can be very unpredictable which makes it impossible to anticipate when your circumstances may change and when you may need to have someone make decisions on your behalf.

Circumstances where you may require an Enduring Power of Attorney include:

If you are involved in an accident which results in impaired decision making ability;

If you intend to travel overseas;

If you are in hospital;

If you will be away whilst you are purchasing or selling a property; and

If you are sentenced to a term of imprisonment.

How can Baker Deane & Nutt help me to write my Enduring Power of Attorney?

The decision to make an Enduring Power of Attorney should form part of your estate planning generally. As such it is common for people to make an Enduring Power of Attorney together with a Will.

BDN can assist you by:

Explaining the process of making an Enduring Power of Attorney and a Will;

Taking your detailed instructions over the phone or via email;

Answering any queries that you may have;

Advising you of the applicable costs;

Preparing draft versions of your documents and sending them to you for review;

Once you are happy with the drafts we will arrange to meet with you to explain your documents to you and then execute them.

Emily Bowler is a solicitor with Baker Deane & Nutt Lawyers in the city office. Emily previously worked as an Associate at the ACT Magistrates Court where she developed a thorough knowledge of ACT legislation and Court procedures. Emily is a gifted advocate who appears regularly in both the ACT Magistrates Court and ACT Supreme Court. Emily is passionate about achieving the best outcome for her clients and her friendly nature is an asset to guiding her clients through the process. More about the Author

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